Defendants were charged with offenses
related to unlawfully and knowingly hunting on the enclosed land of another
without first obtaining permission from the owner or lawful occupant. At
trial, the state offered evidence that a group of men, including defendants,
had entered onto land owned by Davidson Industries, a logging company, without
permission and, while there, killed two elk. At the close of the state's
case-in-chief, defendants moved for a judgment of acquittal, arguing that the
evidence offered by the state was insufficient to prove that the area in which
the elk were killed--a "clear-cut" area--was enclosed as required by
the statute and, alternatively, that ORS 498.120 is unconstitutionally vague.
Defendants did not contest that they knew when they entered the Davidson
property that they were hunting on land without permission of the owner. Rather,
they argued:

Defendants also pointed out that there was a "gap"
in the purported clear-cut lines where power lines were running. That gap, in
defendants' view, further undermined any argument that the land was
"enclosed."

The state, in response, argued that
the land in question was indeed set apart--and therefore
"enclosed"--by the timber lines created by the clear-cut:

"Everything is clearcut. * * * Very distinctively different
from the property that is beyond Davidson to the west.

"Yes, there is a gap where the power line
runs through, but it's also obvious that the power line is continuing to run
through, and that as soon as that--on the other side of the power line, that
property boundary, that change into timberland, changes at the same level as it
did before the power lines.

"And on the north side it's the same
story. There's a very clear, distinctive change in property from the clearcut
land into the U.S. Forest Service property timber.

"And again on the east, looking back, very
clear as it goes into Rosboro.

"And I think based on that there is
evidence that this is an enclosed property."

The trial court ultimately ruled that
the question was one for the jury:

"I think the land does need to be enclosed by
boundaries. But the boundaries have to be either visible, which the statute
says, or they have to be distinctive, which the statute also says. And a
reasonable person, such as a juror, will have to determine whether there's a
boundary or not.

"And I think that the statute leaves that
up to the reasonableness of the trier of fact to determine whether there's a
boundary or not. I think the defendants' arguments are that it's--for the
reasons that they've suggested here, that it's not reasonable where there's not
anything indicated by a distinctive line, if the jury concludes there isn't.
That a reasonable person would have to be put on notice that they were crossing
a boundary.

"And the State is free to argue that a
reasonable person coming onto this land at any point, it would be unreasonable
for them not to conclude that they are coming onto a distinct--a piece of land
that was separate and distinct from the surrounding or contiguous territory.

The parties' arguments on appeal
frame issues of statutory interpretation. At the onset of our discussion, it
is important to note that defendants do not challenge the fact that they knowingly
hunted on the land of another. Rather, their argument focuses on a different
issue: whether the state proved that the land on which they were hunting was
"enclosed" land for purposes of ORS 498.120.

That question is one of legislative
intention--namely, what the legislature contemplated when it used the word
"enclosed" in the statute. As with any issue involving statutory
interpretation, our task is to discern the intent of the legislature. We
initially seek to determine the intent of the legislature in regard to ORS
498.120 by resorting to an examination of its text and context as well as any helpful
legislative history. State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042
(2009).

ORS 498.120 provides:

"(1) No person shall hunt upon the
cultivated or enclosed land of another without first obtaining permission from
the owner or lawful occupant thereof, or the agent of such owner or occupant.
No prosecution shall be commenced under this section except upon written
complaint filed with a magistrate. The complaint shall be verified by the oath
of the owner or lawful occupant of the cultivated or enclosed land, or the
agent of such owner or occupant.

"(2) For the purpose of subsection (1) of
this section, the boundaries of 'enclosed' land may be indicated by wire,
ditch, hedge, fence, water or by any visible or distinctive lines that indicate
a separation from the surrounding or contiguous territory, and includes the
established and posted boundaries of Indian reservations established by
treaties of the United States and the various Indian tribes."

The term "enclosed lands"
is not expressly defined in ORS 498.120 or in any related statutory provision.
However, subsection (2) provides examples of how the boundaries of
"enclosed land" for purposes of subsection (1) may be indicated for
purposes of the statute. The common requirement among those examples is that
the boundaries must be manifested by "any visible or distinctive lines
that indicate a separation from the surrounding or contiguous territory[.]"
ORS 498.120(2).

When the legislature has not provided
an express definition for a particular term, we generally look to the term's
plain and ordinary meaning. See PGE v. Bureau of Labor and Industries,
317 Or 606, 611, 859 P2d 1143 (1993). With respect to ORS 498.120, the
statute's antecedent was enacted in 1921. See General Laws of Oregon,
ch 153, § 31 (1921). Subsection (2) of the statute was added in 1973. See
Or Laws 1973, ch 723, § 83. We initially consider definitions of the term
"enclose" from dictionaries that are roughly contemporaneous to the
1921 enactment of what became ORS 498.120. For example, Webster's New Int'l
Dictionary 1088 (1910) defines the word "inclose" as "[t]o
surround; to encompass; to bound, fence, or hem in on all sides; as, a lake inclosed
by hills, a town by walls" and "to fence off or in (common land) in
order to appropriate it to individual use." The same definitions appear
in Webster's New Int'l Dictionary 1088 (1926). Those definitions
comport with usage from a century earlier and decades later. See, e.g.,
Noah Webster, 1 An American Dictionary of the English Language 107
(1828) (defining "inclose" as "[t]o surround; to shut in; to
confine on all sides" and "[t]o separate from the common grounds by a
fence; as, to inclose lands"); Black's Law Dictionary 607,
955 (9th ed 2009) (defining "enclose" as "to surround or to
encompass; to fence or hem in on all sides" and "enclosed land"
as "[l]and that is actually enclosed and surrounded with fences").

Here, the state contends that the clear-cut
lines on the Davidson property constitute a boundary for purposes of ORS
498.120. We disagree. To be enclosed, the land was required to have a
boundary that marked it as separate from--in other words, not a part of--the
lands surrounding it. Although it is true that land that is clear-cut has
different characteristics than land that remains forested, that distinction is
not necessarily one that serves to show that the clear-cut land is separate
from surrounding property. To be sure, the statute appears to contemplate
circumstances where a hunter enters onto the unenclosed land of another without
the permission of the owner and then encounters an agricultural area or an area
enclosed by visible or distinctive boundary lines marking it as separate. A
person who nonetheless enters and hunts on such lands would be subject to the
penalties available under the statute. However, subsection (2) requires that
the boundary indicators of "enclosed land," whatever their nature,
somehow delineate the confines of that land. Contrary to the state's
contention, in this case, there is no evidence that the clear-cut lines serve
that purpose and, for that reason, they cannot constitute a boundary for
purposes of the statute.

1.Specifically,
defendant Berkner was convicted of hunting on the enclosed land of another and
multiple counts of aiding or sharing in a wildlife violation. Defendant Kimble
was convicted only on counts of aiding or sharing in a wildlife violation. The
convictions pursuant to ORS 496.695 were based on defendants having aided or
assisted another in violation of ORS 498.120. The validity of those
convictions depends on whether ORS 498.120 was violated. Given our resolution
of that issue, defendants' other convictions must also be reversed.

""This is not a situation where it is any
different from defense standpoint of having a corral for horses, and having two
sets of rails or three sets of rails on one side that are open. It is not
enclosed as it is defined unless it is complete. You can't have three sides to
make it enclosed. You can't have three sides and two feet on the fourth side,
if it is a square or a rectangle, and it had--and it be enclosed. It simply is
not enclosed unless it is complete, or at least there is the intent to complete
it."

"in order for something to be 'enclosed,' it must be surrounded
by something. Under the statute, the land must be surrounded by
boundaries. Here, the Davidson tract was not surrounded by boundaries [of
trees and vegetation on the Bonneville Power Easement].

"The undisputed evidence was that the clearcut
lines proffered by the state as constituting the eastern and western boundaries
of the Davidson tract were interrupted by two approximately 200 foot sections
of trees and vegetation on the Bonneville Power easement. Furthermore, there
was an area of the clearing that continued onto United States Forest Service property
from the northwest corner of the Davidson property, as well as unlogged areas
of land in the southwest and southeast corners of the Davidson property that
contained trees and other large vegetation."

4.For
example, "No Trespassing or Hunting" signs prominently displayed at
intervals could operate to delineate an "invisible" but nevertheless
distinctive boundary line in an area where a boundary line fence had not been
erected.